Pham, Con Mahn ( 2015 )


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  •                                                                           PD-0739-15
    PD-0739-15                            COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 6/22/2015 10:40:17 PM
    Accepted 6/24/2015 10:57:53 AM
    ABEL ACOSTA
    NO. __________________                                         CLERK
    TO THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    ***************
    CON MANH PHAM
    Petitioner,
    v.
    THE STATE OF TEXAS
    Respondent.
    ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
    07-14-126-CR FROM THE SEVENTH COURT OF APPEALS,
    AND IN CAUSE NUMBER 62,289-C FROM THE
    251st DISTRICT COURT OF POTTER COUNTY
    ***************
    PETITION FOR DISCRETIONARY REVIEW
    ***************
    John Bennett
    Post Office Box 19144
    Amarillo, TX 79114
    June 24, 2015                  Telephone: (806) 282-4455
    Fax: (806) 398-1988
    AppealsAttorney@gmail.com
    State Bar No. 00785691
    Attorney for the Petitioner
    THE PETITIONER REQUESTS ORAL ARGUMENT
    IDENTITY OF PARTIES AND COUNSEL
    1.   Trial Court Judge
    Hon. Ana Estevez
    2.   Appellant
    Con Manh Pham
    Trial Counsel:       George Harwood (State Bar No. 09193500)
    1220 South Georgia
    Amarillo, Texas 79105
    Telephone: (806) 274-2889
    Appellate Counsel:   John Bennett (State Bar No. 00785691)
    P.O. Box 19144
    Amarillo, Texas 79114
    Telephone: (806) 282-4455
    3.   Respondent
    The State of Texas
    Trial Counsel:       Meredith Pinkham (State Bar No. 24073429)
    Jennifer Bassett (State Bar No. 02145532)
    Assistant District Attorneys – Potter County
    501 South Fillmore, Suite 5-A
    Amarillo, Texas 79101
    Telephone: (806) 379-2325
    Appellate Counsel:   Kathy Levy (State Bar No. 12266480)
    Jack Owen (State Bar No. 15369200)
    Assistant District Attorneys – Potter County
    501 South Fillmore, Suite 5-A
    Amarillo, Texas 79101
    Telephone: (806) 379-2325
    2
    TABLE OF CONTENTS
    Index of Authorities ..............................................................................................4
    Statement Regarding Oral Argument ...................................................................6
    Statement of the Case............................................................................................6
    Statement of Procedural History ...........................................................................6
    Ground for Review ...............................................................................................6
    Is Owens v. State, 
    437 S.W.3d 584
    (Tex.App. – Texarkana
    2014, pet. granted), correct that a witness who “testifies as an
    expert regarding a defendant's competence to stand trial” and, by
    extension, regarding a defendant’s sanity, “must be a licensed
    psychiatrist or psychologist and must satisfy a precise list of
    requirements”?
    Argument ..............................................................................................................7
    Prayer for Relief ....................................................................................................8
    Certificate of Compliance .....................................................................................9
    Certificate of Service ............................................................................................9
    Opinion Below ............................................................................ following page 9
    INDEX OF AUTHORITIES
    Case
    Owens v. State, 
    437 S.W.3d 584
    (Tex.App. – Texarkana 2014,
    pet. granted) ........................................................................................ 3,6-8
    Pham v. State, __ S.W.3d __, 
    2015 WL 2375275
    (Tex.App.
    – Amarillo, May 14, 2015) ......................................................................6,8
    Statutory Provisions
    TEX. CODE CRIM. PRO. ANN. Art. 46B.022(a-b)
    (Vernon supp. 2014) ...................................................................................7
    TEX. CODE CRIM. PRO. ANN. Art. 46C.102(a-b)
    (Vernon supp. 2014) ............................................................................... 7-8
    Rule
    TEX. R. APP. P. 66.3(a) .......................................................................................7
    4
    NO. __________________
    TO THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    ***************
    CON MANH PHAM
    Petitioner,
    v.
    THE STATE OF TEXAS
    Respondent.
    ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
    07-14-126-CR FROM THE SEVENTH COURT OF APPEALS,
    AND IN CAUSE NUMBER 62,289-C FROM THE
    108th DISTRICT COURT OF POTTER COUNTY
    ***************
    PETITION FOR DISCRETIONARY REVIEW
    ***************
    To the Honorable Judges of the Court of Criminal Appeals:
    COMES NOW Con Manh Pham, petitioner, and submits this petition in
    support of his request for remand of this cause to the court of appeals for new
    analysis.
    5
    STATEMENT REGARDING ORAL ARGUMENT
    Since two courts of appeals conflict on the issue raised – which is also a
    matter of first impression – the petitioner requests oral argument.
    STATEMENT OF THE CASE
    The petitioner pled not guilty to a charge of murder, but was convicted by
    a jury, which subsequently assessed a sentence of thirty years’ imprisonment.
    STATEMENT OF PROCEDURAL HISTORY
    The Seventh Court of Appeals affirmed the conviction and sentence in a
    published opinion on May 14, 2015. Pham v. State, __ S.W.3d __, 
    2015 WL 2375275
    (Tex.App. – Amarillo, May 14, 2015). A copy of the ruling is attached
    to this Petition. No motion for rehearing was filed.
    GROUND FOR REVIEW
    Is Owens v. State, 
    437 S.W.3d 584
    (Tex.App. – Texarkana 2014, pet.
    granted), correct that a witness who “testifies as an expert regarding a
    defendant's competence to stand trial” and, by extension, regarding a
    defendant’s sanity, “must be a licensed psychiatrist or psychologist and must
    satisfy a precise list of requirements”?
    6
    ARGUMENT
    The decision of the court below “conflicts with another court of appeals'
    decision on the same issue.” TEX. R. APP. P. 66.3(a).
    Under TEX CODE CRIM. PRO. ANN. Art. 46B.022(a-b) (Vernon supp.
    2014), a mental health professional appointed to evaluate competence to stand
    trial must meet several specific qualifications. 
    Id. The corresponding
    provision
    regarding appointment to do insanity evaluations is similar.          TEX. CODE
    CRIM. PRO. ANN. Art. 46C.102(a-b) (Vernon supp. 2014).
    The Sixth Court of Appeals has recently concluded that under Art.
    46B.102, expert witnesses testifying at competency hearings must also meet the
    qualifications required for appointment to determine competence:
    A person who testifies as an expert regarding a defendant's competence
    to stand trial must be a licensed psychiatrist or psychologist and must
    satisfy a precise list of requirements.
    
    Owens, 437 S.W.3d at 586-7
    .
    Here, as the court of appeals noted, the court-appointed expert testified
    the appellant was insane at the time of the act for which he was tried. (Opinion,
    attached, p. 7).   But the State hired its own expert who did not meet the
    qualifications of Art. 46C.102(a-b), and who – over the appellant’s objection to
    that effect – testified the appellant was sane.       (Opinion, p. 9).    The jury
    convicted the appellant, implicitly rejecting his plea of insanity.
    7
    On appeal the petitioner raised the matter of the State’s expert’s
    qualifications under Art. 46C.102(a-b). But the court of appeals, while noting
    that the State’s expert did not meet several of Art. 46C.102’s qualifications, did
    not construe that provision in the manner of Owens, to require expert witnesses
    other than those appointed thereby to meet its qualifications:
    Neither Article 46C.107 itself nor any other provision in the code
    appears to apply Article 46C.102’s specific qualifications to an expert of
    the defendant’s own choice.
    (Opinion, p. 10, 12-13).      Discretionary review is desirable to address the
    conflict. Rule 
    66.3(a), supra
    .
    PRAYER FOR RELIEF
    The petitioner therefore prays the Court grant discretionary review and
    remand the case to the court of appeals for a harm analysis, or grant all
    appropriate relief.
    Respectfully submitted,
    /s/ JOHN BENNETT
    John Bennett
    Post Office Box 19144
    Amarillo, TX 79114
    Telephone: (806) 282-4455
    Fax: (806) 398-1988
    Email: AppealsAttorney@gmail.com
    State Bar No. 00785691
    Attorney for the Petitioner
    8
    CERTIFICATE OF COMPLIANCE
    I certify that this entire PDR contains 1,082 words.
    /s/ JOHN BENNETT
    John Bennett
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of the above and foregoing PDR has
    been served by prepaid U.S. Mail, first class delivery prepaid, on Jack Owen,
    Esq., Assistant District Attorney for Potter County, by email to him at
    jackowen@co.potter.tx.us, and on Lisa McMinn, Esq., State Prosecuting
    Attorney, by United States Mail, first class delivery prepaid, to her at P.O. Box
    13046, Austin, Texas 78711, and by email to her at lisa.mcminn@spa.texas.gov,
    all on June 15, 2015.
    /s/ JOHN BENNETT
    John Bennett
    9
    In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    No. 07-14-00126-CR
    CON MANH PHAM, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    On Appeal from the 251st District Court
    Potter County, Texas
    Trial Court No. 62,289-C, Honorable Ana Estevez, Presiding
    May 14, 2015
    OPINION
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    Appellant, Con Manh Pham, appeals the trial court’s judgment by which he was
    convicted of murder and sentenced to thirty years’ imprisonment.1                On appeal, he
    challenges the legal and factual sufficiency of the jury’s rejection of his insanity defense
    and the qualification of the State-sponsored psychiatric expert. We will affirm.
    1
    See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
    Factual and Procedural History
    The Day of the Murder
    On the morning of September 10, 2010, Dinh Pham2 came to his church, Our
    Lady of Vietnam Church, to continue his volunteer work of painting areas of the church.
    Between 10:00 and 11:00 that morning, appellant, also a member of the congregation,
    came to the office of the church’s pastor, Father John Tran Tinh, and asked for his
    prayers due to appellant’s failing health. Appellant and Father John talked for about ten
    minutes; the two had what Father John described as a “very normal conversation.”
    At the suggestion of Father John, appellant joined Dinh in the church basement
    where Dinh was painting the children’s Sunday school rooms. For some time, it seems,
    the two may have been painting together. However, at some point, the collaboration
    turned deadly. While the two men were in the basement together, appellant stabbed
    Dinh several times, sliced his throat, and placed his body on a piece of cardboard in a
    spread eagle-type pose.         Then, appellant called 911 at approximately 1:30 in the
    afternoon.
    Through a translator, the 911 operator was able to understand that there had
    been a stabbing at the Our Lady of Vietnam Church. The caller, identified as appellant,
    reported that another man had stabbed him and that he had stabbed that man in return.
    Police were immediately dispatched to the church.
    2
    The record indicates that appellant and Dinh Pham were unrelated. Because appellant and the
    victim share the same surname, though, we will refer to Dinh Pham as “Dinh” to avoid the possibility of
    confusion. Likewise, we later refer to appellant’s brother by his first name, “Cang.”
    2
    First to arrive was Corporal Darrell Roberts, who encountered appellant as he
    came out the side door of the church. Appellant was in a “distraught” state, flailing
    about and falling to the ground as he held his leg, which showed to have a small
    amount of blood on it. Roberts communicated as best he could with appellant for a
    moment, and appellant gestured to him in such a way as to direct Roberts’s attention
    inside the church. Thinking that he was going inside to search for the suspect and that
    appellant was the apparent victim of the reported stabbing, Roberts went inside the
    church, joined by another officer who arrived shortly after Roberts.       The officers
    searched each ground level room only to find no one. Then, they discovered Dinh’s
    body lying on the floor in the basement. Roberts radioed upstairs to the several other
    officers who had, by then, responded to the location, indicating that appellant was now
    the suspect and should be detained.
    Sergeant Raquel Saunders, who was staying with appellant upstairs in the
    church’s dining hall, was unable to decipher the garbled radio transmission from the
    basement. She continued her interaction with appellant, still the apparent victim, whose
    behavior and mannerisms were, by Saunders’s account, somewhat “odd” considering
    that his wounds were far from severe. Saunders explained that, during much of her
    interaction with appellant, appellant remained lying flat on his back and would
    sometimes only lift up his head to speak or gesture to her. She described him as
    cooperative, however, and noted that he made no attempt to flee.
    Ultimately, the wounds to appellant’s leg were minor, but, at the time, he was
    transported to the hospital, where he was interviewed by Sergeant Paul Buckles of the
    Potter County Sheriff’s Department, a member of the Criminal Investigation Division.
    3
    Appellant repeatedly reported to Buckles that Dinh had stabbed him, so appellant
    stabbed him back.     During the time immediately after the murder, appellant never
    wavered from this self-defense scenario to describe the interaction between appellant
    and Dinh leading up to Dinh’s death.
    Appellant’s Behavior Leading up to the Murder
    From the record, we learn that appellant has had a rather long history of suffering
    from mental illness. For many years, he was under the care of a doctor and was
    prescribed medications that would greatly improve his mental and physical well-being.
    We learn, too, that appellant stopped taking his medication in the months leading up to
    the murder and that, at the moment he stopped taking them, his mental and physical
    health began to deteriorate, a fact that family members noted.
    Appellant’s mother, Tran Dao, testified that her son lived with his wife and child
    nearby, but she saw him on a daily basis and he would sometimes stay at her house.
    He stayed at her house rather frequently during the summer of 2010, in the months
    preceding the murder. He would stay for a few days and then return to his home for a
    while. During the times appellant would stay at his mother’s house, she noted that he
    was not well and observed his increasingly erratic behavior. Dao described an incident
    during which appellant destroyed her couch with a hammer after explaining that he did
    not like it any longer and, consequently, had to destroy it. She described him as looking
    very strange during that episode. She also described an incident during which appellant
    cut down a tree in her front yard despite her protests and despite the fact that there was
    nothing apparently wrong with the tree. She explained that both she and another of her
    4
    sons tried unsuccessfully to dissuade him from doing so.      She also explained that
    appellant was afraid of something and, out of fear, covered over all the windows of her
    house with newspaper. Appellant told her that he was afraid someone would see him
    and do him harm. Appellant also installed a security camera in her home, but, when he
    suspected someone had tampered with it, he destroyed the camera by throwing it on
    the floor.   Dao also testified as to appellant’s obsession with washing his clothes
    repeatedly and his growing suspicion that someone—perhaps his brother and/or his
    wife—was poisoning his food. He would often refuse to eat and, as a result, grew
    thinner and weaker throughout the summer. Dao explained that when appellant was
    taking his medication, he looked healthier and acted normally, but, when he did not, he
    looked “very weird” and could not work.
    On the morning of the murder, appellant came to Dao’s house to drop off his son
    for her to watch while he went somewhere. Dao described him as looking “very sick
    and very weak” that morning. His behavior was “abnormal,” and he told her he was
    going to go to the doctor. She encouraged him to begin taking his medication again.
    Appellant’s brother, Cang Pham, also testified that, when appellant would cease
    taking his medication, he would become ill and would often stay at the house with him
    and their mother. He, too, described appellant as “weak” and not doing well in the
    weeks before the murder. Cang testified that, at times, appellant would sit alone and
    simply smile to himself. He also described how appellant covered all the windows in
    newspaper. In fact, appellant’s appearance and demeanor became so worrisome that
    Cang called the police to seek help in how to get appellant back on his medication.
    Either the police or another source directed Cang to application paperwork that would
    5
    initiate a commitment proceeding by which appellant might be hospitalized. Shortly
    before the murder, Cang got the application, but, because of a language barrier, was
    unable to complete that application before the murder occurred.         Cang also urged
    appellant to go back to his doctor who had been treating appellant’s mental illness for
    years, but appellant refused. A month or two before the murder, Cang scheduled an
    appointment for appellant with a new doctor, but, again, appellant refused to go.
    Appellant’s wife, Minh Nguyen, also testified about appellant’s behavior in the
    months preceding the murder. She testified that, after working at his job for over ten
    years, he quit in March 2010 but returned to that job in August 2010, weeks before the
    murder. His return to work served to accelerate his physical and mental deterioration,
    according to Nguyen. She testified that he slept very, very little, and, when he did
    sleep, he would wake up in the night to wash his feet, telling her that he feels like there
    was something inside them causing him to itch.
    Much like appellant’s mother, Nguyen reported a distinct difference between
    appellant’s behavior and appearance when he was properly medicated and when he
    was not. She testified that he would wear scarves during the hot summer months
    before the murder. On a whim, he also took a trip to France in July 2010. Nguyen also
    noticed that appellant would repeatedly wash his clothes. Appellant would frequently
    hear people inside the house, which caused him a great deal of fear. He also voiced his
    suspicion to her that their next-door neighbors were hiding dead bodies in their garage.
    She testified, too, that appellant treated her meanly during the months preceding
    the murder, having become both verbally and physically abusive. She described a time
    6
    when appellant, displeased with something related to their son’s clothing, gave her a
    black eye by striking her in the face so hard that it knocked her to the ground. After he
    struck her, he went to lie down for about fifteen minutes, and then he came and
    apologized to her. Prior to that incident, appellant had never struck her and had not
    been violent toward anyone else in the years that she had known him. Nguyen called
    the police that day to try to get help in getting appellant back on his medication. Nguyen
    testified that appellant believed at times that she was poisoning his food; he would often
    refuse to eat and lost a lot of weight. The morning of the murder, appellant spoke with
    Nguyen about the poisoning and discussed divorce.           Nguyen made clear that she
    thought her husband was mentally ill, characterizing him as “a sick man.”
    Expert Testimony on Appellant’s State of Mind, Sanity
    The trial court appointed Steven C. Schneider, Ph.D., a neuropsychologist, to
    conduct an examination on appellant to determine whether appellant was sane or
    insane at the time of the offense. Schneider examined appellant a little over a year after
    the incident, after appellant had been medicated. Schineider’s testing revealed that
    appellant had “a significant executive function impairment” as evidenced by imaging of
    his brain’s frontal lobe activity, an impairment which would result in him having less self-
    control.   Based on this “severe frontal lobe impairment,” Schneider testified that,
    unmedicated, appellant would likely experience “some tremendous confusion and
    distortion.” Citing appellant’s paranoid schizophrenia, his frontal lobe impairment, and
    appellant’s explanation that he believed that Dinh was a demonic cannibal, Schneider
    concluded that, at the time of the offense, appellant was not able to distinguish right
    from wrong and was, therefore, legally insane.         Schneider testified that appellant
    7
    believed that Dinh was going to eat him and stabbed Dinh to prevent him from doing so.
    In an anachronistic narrative, appellant explained to Schneider why he thought Dinh
    was a cannibal: appellant saw Dinh the day after the murder when Dinh threw
    something—perhaps something resembling human remains—in the garbage can while
    drinking a beer.    Schneider explained that, during the examination, the more lucid
    appellant, who did express remorse for the murder during the evaluation, was aware
    that his thoughts at the time were confused and disjointed.
    Schneider discounted appellant’s initial reports that he killed Dinh in self-
    defense—and his attendant silence regarding his suspicions that Dinh was a cannibal—
    as appellant’s attempts to adjust his behavior and thought pattern to society’s norms, to
    avoid a negative reaction to his suspicions.       Schneider expressed a reluctance to
    interpret appellant’s story immediately after the murder as indicative of appellant’s ability
    to distinguish right from wrong.       Schneider also declined the invitation to take
    appellant’s apology for striking his wife days before the murder as indicative of
    appellant’s ability to distinguish right from wrong at the time of the murder; Schneider
    explained that a person suffering from mental illness will, at times, do appropriate
    things, often depending on their state of mind and level of psychological arousal at the
    time. Schneider also described some of appellant’s bizarre behavior immediately after
    the incident as atypical for someone who felt guilt about his action, suggesting that
    appellant was not aware that killing Dinh was wrong.
    The State hired its own expert: Dr. James Avery Rush IV, M.D., a psychiatrist,
    who agreed with Schneider that appellant was suffering from a mental illness, but
    expressly disagreed that appellant was unable to distinguish right from wrong. Unlike
    8
    Schneider, Rush cited appellant’s fabricated self-defense story and some of appellant’s
    behavior prior to the murder as evidence that appellant knew that killing Dinh was
    wrong. Rush’s conclusion, after reviewing the records, reports, and interviews and his
    examination of appellant approximately two and one-half years after the incident, was
    that appellant was sane at the time of the murder.
    Rush testified that appellant reported to him that he killed Dinh because he
    thought Dinh was a cannibal and was going to kill children. Rush noted that nowhere,
    prior to his examination by Dr. Schneider, did appellant mention killing Dinh to prevent
    Dinh from cannibalizing anyone. Rush also explained that the fact that appellant called
    911 after the killing demonstrated that he knew “something was wrong with what he had
    just done.” In Rush’s experience, had appellant been experiencing at the time of the
    murder the later-reported hallucinations that Dinh was a cannibal who was about to eat
    appellant, some manifestation of appellant’s abnormal thinking and hallucinations of
    Dinh’s possession and cannibalism would have been revealed the day of the murder or
    soon thereafter, indicating that an acutely psychotic person experiencing such thought
    patterns or hallucinations would not be able to suppress them for a sustained period in
    that situation. Rush also testified that appellant’s apology to his wife for striking her
    days before the murder indicated that, at that time, he was able to distinguish right from
    wrong; appellant knew that punching his wife was wrong. Ultimately, Rush agreed with
    Schneider that appellant was suffering from an active mental disease the day of the
    murder but disagreed that, as a result of that mental disease, appellant was unable to
    distinguish right from wrong.
    9
    By its guilty verdict, the jury rejected appellant’s plea of insanity and, consistent
    with Rush’s conclusions, impliedly found that appellant was sane at the time of the
    offense. Appellant now complains on appeal from the trial court’s judgment that (1) the
    trial court abused its discretion by admitting Rush’s testimony when Rush did not qualify
    under the Texas Code of Criminal Procedure as an expert who could be appointed by
    the trial court to conduct sanity examinations, (2) the evidence was legally insufficient to
    support the jury’s finding that appellant was sane at the time he killed Dinh, and (3) the
    evidence was factually insufficient to support that same finding. We will address these
    issues in turn.3
    Admission of Rush’s Testimony
    Appellant contends that, because Rush did not qualify for appointment by the trial
    court to conduct an examination of appellant’s sanity, the trial court abused its discretion
    by admitting his testimony.          From the record, it appears that Rush did not meet a
    number of the qualifications outlined in the Texas Code of Criminal Procedure for a
    court-appointed expert to conduct sanity examinations. The issue we must address is
    whether he had to meet those qualifications in this context.
    Standard of Review
    We review the trial court’s decision to exclude or admit evidence for an abuse of
    discretion. See Montgomery v. State, 
    810 S.W.2d 372
    , 379 (Tex. Crim. App. 1990) (en
    3
    The procedural considerations and the relationship of the issues presented to this Court make it
    more logical to address the admission of Rush’s testimony first although appellant’s challenge to the legal
    sufficiency of the evidence would provide the greatest relief and, therefore, ordinarily would be addressed
    first. See Chaney v. State, 
    314 S.W.3d 561
    , 565 (Tex. App.—Amarillo 2010, pet. ref’d) (citing TEX. R.
    APP. P. 43.3 and Bradley’s Elec., Inc. v. Cigna Lloyds Ins. Co., 
    995 S.W.2d 675
    , 677 (Tex. 1999) (per
    curiam)).
    10
    banc) (citing Marras v. State, 
    741 S.W.2d 395
    , 404 (Tex. Crim. App. 1987) (en banc)).
    The test for abuse of discretion is whether the trial court acted without reference to any
    guiding rules and principles. 
    Id. at 380.
    We will uphold the trial court’s ruling “so long
    as the result is not reached in an arbitrary or capricious manner.” 
    Id. Further, we
    will
    sustain the trial court’s decision if that decision is correct on any theory of law applicable
    to the case. Romero v. State, 
    800 S.W.2d 539
    , 543 (Tex. Crim. App. 1990) (en banc).
    Applicable Law
    The Texas Code of Criminal Procedure authorizes the trial court, on its own
    motion or a motion by either party, to appoint a psychiatrist or psychologist to examine
    the defendant with regard to the insanity defense and testify as to the defendant’s
    sanity, provided the psychiatrist or psychologist meet the code’s several specific
    qualifications:
    (a) The court may appoint qualified psychiatrists or psychologists as
    experts under this chapter. To qualify for appointment under this
    subchapter as an expert, a psychiatrist or psychologist must:
    (1) as appropriate, be a physician licensed in this state or be a
    psychologist licensed in this state who has a doctoral degree in
    psychology; and
    (2) have the following certification or experience or training:
    (A) as appropriate, certification by:
    (i) the American Board of Psychiatry and Neurology
    with added or special qualifications in forensic
    psychiatry; or
    (ii) the American Board of Professional Psychology in
    forensic psychology; or
    (B) experience or training consisting of:
    11
    (i) at least 24 hours of specialized forensic training
    relating to incompetency or insanity evaluations;
    (ii) at least five years of experience in performing
    criminal forensic evaluations for courts; and
    (iii) eight or more hours of continuing education
    relating to forensic evaluations, completed in the 12
    months preceding the appointment and documented
    with the court.
    (b) In addition to meeting qualifications required by Subsection (a), to be
    appointed as an expert a psychiatrist or psychologist must have
    completed six hours of required continuing education in courses in
    forensic psychiatry or psychology, as appropriate, in the 24 months
    preceding the appointment.
    (c) A court may appoint as an expert a psychiatrist or psychologist who
    does not meet the requirements of Subsections (a) and (b) only if exigent
    circumstances require the court to base the appointment on professional
    training or experience of the expert that directly provides the expert with a
    specialized expertise to examine the defendant that would not ordinarily
    be possessed by a psychiatrist or psychologist who meets the
    requirements of Subsections (a) and (b).
    TEX. CODE CRIM. PROC. ANN. art. 46C.102 (West 2006). A psychiatrist or psychologist
    appointed by the trial court is not considered an expert witness for either party; rather,
    he or she is treated as “the court’s disinterested witness.” See De Freece v. State, 
    848 S.W.2d 150
    , 154 (Tex. Crim. App. 1993) (en banc); see also Granviel v. State, 
    552 S.W.2d 107
    , 115 (Tex. Crim. App. 1976) (characterizing court-appointed psychiatrist as
    “the court’s disinterested expert”).      The Texas Code of Criminal Procedure
    contemplates that a defendant may also wish to be examined by his own expert: “If a
    defendant wishes to be examined by an expert of the defendant’s own choice, the court
    on timely request shall provide the examiner with reasonable opportunity to examine the
    defendant.” TEX. CODE CRIM. PROC. ANN. art. 46C.107 (West 2006). Neither Article
    12
    46C.107 itself nor any other provision in the code appears to apply Article 46C.102’s
    specific qualifications to an expert of the defendant’s own choice.
    Analysis
    Appellant cites Owens v. State, 
    437 S.W.3d 584
    (Tex. App.—Texarkana 2014)
    pet. granted, No. PD-0967-14, 2014 Tex. Crim. App. LEXIS 1391 (Tex. Crim. App.
    2014),4 as support for his position that, even though Rush was not a court-appointed
    expert, he must meet Article 46C.102’s qualification requirements before his testimony
    is admissible as expert testimony. Appellant seizes on language from Owens, which he
    cites as support that any State-sponsored expert—regardless of whether that expert
    was appointed by the trial court—must meet the educational, training, and practical
    requirements of Article 46C.102: “A person who testifies as an expert regarding a
    defendant’s competence to stand trial must be a licensed psychiatrist or psychologist
    and must satisfy a precise list of requirements.” See 
    id. at 586
    (dealing with expert
    qualification under Articles 46B.021 and 46B.022, analogous provisions governing
    competency to stand trial but which, notably, make appointment mandatory upon “a
    determination that evidence exists to support a finding of incompetency”). For a number
    of reasons, we are not persuaded by appellant’s reliance on Owens in support of his
    contention.
    4
    The Owens court concluded that the court-appointed expert on the appellant’s competency in
    that case did not qualify for appointment under Article 46B.022(a)(2)(B). See 
    Owens, 437 S.W.3d at 589
    .
    The court reversed the trial court’s judgment and remanded the cause for a new trial. See 
    id. The Texas
    Court of Criminal Appeals granted the State’s petition for discretionary review on only one of the State’s
    grounds: “Whether the appellate court erred in reversing the conviction in lieu of abating the appeal and
    ordering a retrospective competency trial.” That said, the Texarkana Court’s conclusions relating to the
    qualification issue and its analysis on that issue will not be addressed by the Texas Court of Criminal
    Appeals.
    13
    First, we note that the procedural history of and legal issues raised in Owens are
    clearly distinguishable from those in the case at bar; in Owens, the expert on
    competence was, in fact, court-appointed and, by the State’s own admission, did not
    meet the qualifications of Article 46B.022 for appointment. See 
    id. at 585,
    587; see also
    TEX. CODE CRIM. PROC. ANN. art. 46B.022 (West Supp. 2014). Additionally, as has been
    noted, Owens dealt with incompetency rather than insanity, and, while the two issues
    share some similar considerations, they remain two distinct legal concepts with
    distinctive definitions, procedures, and consequences. See Arnold v. State, 
    873 S.W.2d 27
    , 35 (Tex. Crim. App. 1993) (citing Manning v. State, 
    730 S.W.2d 744
    , 747 (Tex.
    Crim. App. 1987) (en banc)).
    Secondly, even reading the cited, competency-related language in Owens as
    somewhat supportive of such a position in the insanity context, the plain language of
    Article 46C.102 itself suggests that it applies only to court-appointed experts: “To qualify
    for appointment under this subchapter as an expert . . . .” See TEX. CODE CRIM. PROC.
    ANN. art. 46C.102(a). “Under the canons of statutory construction, we are to construe a
    statute according to its plain language, unless the language is ambiguous or the
    interpretation would lead to absurd results that the legislature could not have intended.”
    Tapps v. State, 
    294 S.W.3d 175
    , 177 (Tex. Crim. App. 2009) (quoting Williams v. State,
    
    253 S.W.3d 673
    , 677 (Tex. Crim. App. 2008)).          “In an attempt to discern the fair,
    objective meaning of the text at the time of its enactment, ‘[w]e assume that every word
    has been used for a purpose and that each word, phrase, clause, and sentence should
    be given effect if reasonably possible.’” 
    Id. (quoting Campbell
    v. State, 
    49 S.W.3d 874
    ,
    876 (Tex. Crim. App. 2001) (en banc)). Ordinarily, it is not for the courts to add or
    14
    subtract from the plain language of a statute when that statute is clear and
    unambiguous. See 
    id. (citing Coit
    v. State, 
    808 S.W.2d 473
    , 475 (Tex. Crim. App. 1991)
    (en banc)). While the result of the application of the plain language of Article 46C.102
    may mean that a court-appointed expert may have to meet the specific qualifications of
    that provision while an expert for the State or for the defense may not have to meet
    such rigorous qualification requirements, we see such a result as arguably undesirable
    by the adverse party, but it does not seem—nor does either party contend on appeal
    that it is—an “absurd” result. In the absence of an absurd result, we will construe Article
    46C.102 in accordance with its plain language, as applicable to court-appointed experts
    on the insanity issue. See 
    Tapps, 294 S.W.3d at 177
    .
    Finally, though there appears to be no authority directly on point, the authority
    that does exist is contrary to appellant’s position. When dealing with Article 46C.102’s
    predecessors, the Texas Court of Criminal Appeals confirmed the distinction between
    court-appointed experts and those experts independently hired by either party and
    rejected a contention that predecessor provisions, Articles 46.02 and 46.03, composed
    the exclusive method by which a defendant could be examined on the issue of insanity:
    We held [in Patterson v. State] that Art. 46.02(2)(f)(1), V.A.C.C.P. did not
    provide the exclusive procedure for examining the defendant, and
    consequently the State’s rebuttal testimony was proper even though [its
    expert] was not court-appointed and had examined the defendant solely at
    the State’s request. Similarly, in this case appellant was entitled to call his
    own expert witnesses to testify that he was insane at the time of the
    commission of the offense and the State was entitled to rebut that
    testimony with its own expert witnesses. These witnesses need not be
    court-appointed and are not subject to the above-mentioned specific
    provisions of [Articles 46.02 and 46.03] that court-appointed psychiatrists
    are subject to.
    15
    Brandon v. State, 
    599 S.W.2d 567
    , 576 (Tex. Crim. App. 1979) (discussing the court’s
    previous rejection of such a contention in Patterson v. State, 
    509 S.W.2d 857
    , 862 (Tex.
    Crim. App. 1974)), vacated on other grounds, 
    453 U.S. 902
    , 
    101 S. Ct. 3134
    , 
    69 L. Ed. 2d
    988 (1981). Former Article 46.03 and the current provision in Article 46C.102 do
    vary a great deal in terms of the specific requirements imposed on an expert who is
    appointed by the trial court to conduct a sanity examination. Nonetheless, Brandon’s
    and Patterson’s positions are instructive here, and, in this particular context and in light
    of the plain language of Article 46C.102, their application is intuitive: Article 46C.102
    applies only to court-appointed experts.5
    That said, Rush, hired as an expert by the State, need not qualify under Article
    46C.102 in order for his testimony to be admitted as expert testimony on appellant’s
    sanity at the time of the murder. Instead, precisely as the trial court concluded, the
    admission of Rush’s testimony was governed by the more general Rule 702. See TEX.
    R. EVID. 702. Rule 702 provides as follows:
    A witness who is qualified as an expert by knowledge, skill, experience,
    training, or education may testify in the form of an opinion or otherwise if
    the expert’s scientific, technical, or other specialized knowledge will help
    the trier of fact to understand the evidence or to determine a fact in issue.
    Appellant does not contend that Rush does not qualify as an expert under Rule 702.
    And, based on Rush’s knowledge, skill, experience, training, and education in the field
    of psychiatry, the trial court did not abuse its discretion by concluding that Rush
    qualified as an expert under Rule 702 and admitting his testimony as such. We overrule
    5
    Our holding to this effect is in no way intended to constrain or otherwise impact an indigent
    defendant’s constitutional right of access to a psychiatric expert who may be appointed under the
    principles set forth in Ake v. Oklahoma, 
    470 U.S. 68
    , 
    105 S. Ct. 1087
    , 
    84 L. Ed. 2d 53
    (1985).
    16
    appellant’s contention. We now turn to appellant’s challenge to the sufficiency of the
    evidence.
    Sufficiency of the Evidence
    Appellant challenges the legal and factual sufficiency of the evidence to support
    the jury’s rejection of his insanity defense, implied by its guilty verdict.
    Applicable Law
    The Texas Penal Code outlines generally the affirmative defense of insanity:
    (a) It is an affirmative defense to prosecution that, at the time of the
    conduct charged, the actor, as a result of severe mental disease or defect,
    did not know that his conduct was wrong.
    (b) The term “mental disease or defect” does not include an abnormality
    manifested only by repeated criminal or otherwise antisocial conduct.
    TEX. PENAL CODE ANN. § 8.01 (West 2011).
    Texas law excuses a defendant from criminal responsibility if he proves, by a
    preponderance of the evidence, the affirmative defense of insanity. Ruffin v. State, 
    270 S.W.3d 586
    , 592 (Tex. Crim. App. 2008). The insanity defense focuses on whether the
    accused understood the nature of his action and whether he knew he should not do it.
    See Bigby v. State, 
    892 S.W.2d 864
    , 878 (Tex. Crim. App. 1994) (en banc).             The
    insanity defense excuses the person from criminal responsibility even though the State
    has proved every element of the offense, including the mens rea, beyond a reasonable
    doubt. 
    Ruffin, 270 S.W.3d at 592
    . “The test for determining insanity is whether, at the
    time of the conduct charged, the defendant—as a result of a severe mental disease or
    defect—did not know that his conduct was ‘wrong.’” 
    Id. Under Texas
    law, “wrong” in
    17
    this context means “illegal.” 
    Id. (citing Bigby,
    892 S.W.2d at 878). Thus, the question
    for deciding insanity becomes as follows: Does the defendant factually know that
    society considers this conduct against the law, even though the defendant, due to his
    mental disease or defect, may think that the conduct is morally justified? 
    Id. If the
    accused knows that his conduct is “illegal” by societal standards, then he understands
    that his conduct is wrong, even if, due to a mental disease or defect, he thinks his
    conduct is morally justified. See 
    id. “There is
    a general presumption of sanity and the defendant bears the burden of
    proving, by a preponderance of the evidence, his insanity at the time of the conduct
    charged.” Martinez v. State, 
    867 S.W.2d 30
    , 33 (Tex. Crim. App. 1993) (en banc) (citing
    Riley v. State, 
    830 S.W.2d 584
    , 585 (Tex. Crim. App. 1992) (en banc)). At trial, a
    defendant bears both the burden of production of evidence and the burden of
    persuasion for his affirmative defense of insanity.      See 
    Bigby, 892 S.W.2d at 875
    .
    Ultimately, whether the defense of insanity was proved is a decision that lies within the
    province of the trier of fact, not only as to the credibility of witnesses and the weight of
    the evidence, but also as to the limits of the defense. See 
    id. at 878
    (quoting Graham v.
    State, 
    566 S.W.2d 941
    , 952 (Tex. Crim. App. 1978) (en banc)).
    Standards of review
    Appellant challenges the legal and factual sufficiency of the evidence to support
    the jury’s implied rejection of his affirmative defense of insanity. Judge Cochran of the
    Texas Court of Criminal Appeals has observed that the court has properly adopted the
    civil standards of legal and factual sufficiency for “those few instances in criminal cases
    18
    in which the burden of proof is a preponderance of the evidence,” such as affirmative
    defenses. See Brooks v. State, 
    323 S.W.3d 893
    , 924 (Tex. Crim. App. 2010) (Cochran,
    J., concurring).
    Legal Sufficiency
    When an appellant asserts that there is no evidence to support an adverse
    finding on which he had the burden of proof, we construe the issue as an assertion that
    the contrary was established as a matter of law. Matlock v. State, 
    392 S.W.3d 662
    , 669
    (Tex. Crim. App. 2013) (citing the civil standard of review for legal sufficiency in City of
    Keller v. Wilson, 
    168 S.W.3d 802
    , 827 (Tex. 2005), and quoting One Ford Mustang, VIN
    1FAFP40471F207859 v. State, 
    231 S.W.3d 445
    , 449 (Tex. App.—Waco 2007, no pet.)).
    We first search the record for evidence favorable to the finding, disregarding all contrary
    evidence unless a reasonable factfinder could not.          
    Id. If we
    find no evidence
    supporting the finding, we then determine whether the contrary was established as a
    matter of law. 
    Id. If the
    re was some evidence, then the reviewing court must reject
    appellant’s legal sufficiency claim. 
    Id. (citing Sterner
    v. Marathon Oil Co., 
    767 S.W.2d 686
    , 690 (Tex. 1989)).
    Factual Sufficiency
    In reviewing the factual sufficiency of the jury’s rejection of an affirmative
    defense, “an appellate court views the entirety of the evidence in a neutral light, but it
    may not usurp the function of the jury by substituting its judgment in place of the jury’s
    assessment of the weight and credibility of the witnesses’ testimony.” 
    Id. at 671
    (citing
    Meraz v. State, 
    785 S.W.2d 146
    , 154 (Tex. Crim. App. 1990) (en banc)). Therefore, an
    19
    appellate court may sustain a defendant’s claim of factual insufficiency only if, after
    setting out the relevant evidence and explaining precisely how the contrary evidence
    greatly outweighs the evidence supporting the verdict, the court clearly states why the
    verdict is so much against the great weight of the evidence as to be manifestly unjust,
    conscience-shocking, or clearly biased. 
    Id. (citing Meraz,
    785 S.W.2d at 154 n.2).
    Analysis
    Both experts agreed that appellant was suffering from a severe mental disease
    or defect at the time of the murder. The evidence certainly supports such a conclusion
    as well. Neither party challenges that aspect of the evidence. Resolution of appellant’s
    issues will turn on evaluation of the evidence regarding appellant’s ability, at the time of
    the murder, to distinguish right from wrong. One expert concluded that appellant was
    not able to make such a distinction as a result of his mental disease or defect; the other
    expert concluded that he was able to do so.
    Having searched the record for evidence favorable to the jury’s rejection of
    appellant’s claim of insanity, we note Dr. Rush’s testimony that certain behaviors
    preceding the murder and immediately after the murder, appellant’s 911 call, his
    fabricated self-defense story, and his steadfast adherence to that story in the time
    immediately after the murder all suggest that, at the time he murdered Dinh, appellant
    was able to distinguish right from wrong. See 
    id. at 669.
    Having found some evidence
    to support the jury’s implied finding that appellant was sane at the time of the murder,
    we must reject appellant’s challenge to the legal sufficiency of the jury’s finding. See 
    id. We overrule
    appellant’s contention.
    20
    We next review the factual sufficiency of the evidence to support the jury’s finding
    by evaluating the entirety of the evidence in a neutral light. See 
    id. at 671.
    We have
    previously outlined in detail both doctors’ bases for their conflicting conclusions
    regarding appellant’s sanity at the time of the murder and note that the jury had before it
    the testimony of both doctors. Again, the determination of whether the insanity defense
    was proved lies within the province of the trier of fact. See 
    Bigby, 892 S.W.2d at 878
    .
    Remaining mindful that we are not to “usurp the function of the jury by substituting our
    judgment in place of the jury’s assessment of the weight and credibility of the witnesses’
    testimony,” we cannot state, based on the record before us, that the evidence contrary
    to the jury’s finding so greatly outweighs the evidence supporting the verdict that the
    verdict is manifestly unjust, conscience-shocking, or clearly biased. See 
    Matlock, 392 S.W.3d at 671
    ; 
    Meraz, 785 S.W.2d at 154
    . We overrule appellant’s contention that the
    evidence supporting the jury’s verdict was factually insufficient.
    Conclusion
    Having overruled all three of appellant’s issues, we affirm the trial court’s
    judgment of conviction. See TEX. R. APP. P. 43.2(a).
    Mackey K. Hancock
    Justice
    Publish.
    21